Ciullo v. Yellow Book,, USA, Inc.

ANTHONY J. CIULLO, Plaintiff,

v.YELLOW BOOK, USA, INC., Defendant.

10-CV-4484 (CBA)(VVP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date: July 6, 2012

NOT FOR PUBLICATION

MEMORANDUM & ORDER

AMON, Chief United States District Judge:

Plaintiff Anthony Ciullo has brought suit against his former employer, Yellow Book, Inc., alleging discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 630 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq. Ciullo also asserts a breach of contract claim. Yellow Book has moved for summary judgment, seeking dismissal of the complaint in full. For the reasons stated below, summary judgment is granted.

I. Background

Yellow Book is a national provider of marketing solutions to small businesses, offering a product portfolio that includes printed Yellow Book classified advertising directories, online advertising services, and other print, online, and direct mail products and services. Ciullo was hired by Yellow Book as a sales representative ("SR") in October 1999, when he was 56 years old, and he remained employed there until his resignation on June 30, 2006.

Yellow Book SRs are typically assigned to work for a specified period of time in a geographic market called a "canvass," where they are responsible for soliciting orders frombusinesses for advertisements in Yellow Book directories or other products. Once the sale team completes the canvass for a particular market, the Yellow Book directory is published and distributed to households and businesses in that territory, and the sales team moves on to another canvass. Ciullo worked on two canvasses per year, one commencing in the spring and the other in the fall. During Ciullo's employment with Yellow Book, he alternated between the Manhattan and Rockland County canvasses from October 1999 to August 2004, and then between the Hudson Valley and Rockland canvasses from September 2004 until his resignation in June 2006.

As an SR, Ciullo's primarily objectives were to maintain and renew existing advertising business, to increase business from returning advertisers, and to bring in new advertisers. Accordingly Ciullo, like other SRs, was compensated through a base salary plus commissions. The highest commission rates were paid for new business, the lowest rates for straight renewals, and a middle rate for increasing revenue from existing advertisers. Prior to each canvass, Yellow Book would distribute to each SR a list of existing accounts to renew or increase, plus a list of designated streets and neighborhoods in which to prospect for new advertisers.

Ciullo testified that after he accepted his job at Yellow Book in 1999, to help start the then-new Manhattan directory, he was verbally told during a training session that if an SR secured a new advertiser or increased revenue from an existing advertiser, the relevant account was guaranteed to be reassigned to that SR the next time he or she returned to the canvass. (Ciullo Dep. at 48-52.)¹ He further stated that he understood the company policy to be that SRs would only lose the accounts they previously serviced if they committed misconduct or if therevenue on the account decreased. (Id. at 52.) Ciullo testified that in light of this policy, he would devote some amount of time to staying in contact with his clients, even after a particular canvass closed, in order to maintain customer satisfaction and ensure a renewal or increase the next time the canvass opened. (Ciullo Decl. ¶ 3.) Ciullo admitted that this policy of SRs getting to "keep their accounts" was not in writing, and that he is not aware whether other SRs always received back the accounts they previously serviced. (Ciullo Dep. at 60-61, 105, 266.)

Ciullo also submitted identically worded affidavits from two former Yellow Book employees, Kevin Murphy and John Chargar, which state that during these individuals' unspecified tenure of employment as SRs at Yellow Book, they were encouraged to stay in contact with their customers after a canvass closed, and were told that it was in everyone's best interests to maintain a continuous relationship between sales agents and clients. Chagar and Murphy both somewhat vaguely refer to the fact that Yellow Book management told them that they would be reassigned the accounts they previously serviced on each canvass, and that they should treat their accounts like their own "personal business." Curiously, neither affidavit squarely states whether Chagar, Murphy, or other SRs they knew always got their accounts back on subsequent canvasses.

Yellow Book managers testified that there was no formal company policy regarding SRs' right to "keep" their previous accounts. These witnesses stated that continuity of the assigned SR was one of several factors that contributed to the allocation of accounts on each canvass, along with such factors as the SR's prior performance, customer needs, regional variances, and the need to ensure that revenue was adequately distributed among all the SRs. (Voucas Dep. at 20-27; O'Day Dep. at 31, 38; Pl. Ex. X. at D00138; Jack Decl.)

In July 2001, Yellow Book offered its SRs a new pay plan, which involved a50% lower base salary and higher commission rates. Ciullo at the time elected to participate in this new payment plan, as he believed that in light of his large portfolio of existing customers and his success at obtaining renewal business, he would receive a higher income that way. (Ciullo Dep. at 314-15; Ciullo Decl. ¶4.) When Ciullo transferred from the Manhattan to Hudson Valley canvass in 2004, he again elected this lower-base-salary plan. (Pl. 56.1 Stmt. ¶ 7.) His commission structure was thus 5% of renewal revenue, 10% of increase revenue, and 15% of new business revenue. (Schindel Decl., Ex. 2.)

From 1999 through 2002, Ciullo claims that he was consistently reassigned accounts that he had serviced on the prior canvass. However, in the fall of 2002, following some management changes, Ciullo claims that $150,000 worth of his previous accounts were removed from his Manhattan assignment. (Ciullo Dep. at 74-75, 87.) Ciullo spoke with a manager, Bob Fryer, who told him that "he took the accounts away to give it to newer and younger reps coming in because he needed the revenue to attract new people into the business." (Id. at 89.) Fryer also informed Ciullo that the accounts belonged to Yellow Book and that management could "do with them what they want." (Id. at 90.) Ciullo admitted that for that Manhattan canvass, he missed his goal by around 50%, which was more than the missing revenue from the reassigned accounts. (Id. at 93.) Ciullo testified, "I admit wholeheartedly that that canvass, failure in that canvass was mine. I just was not motivated to work for [Bob Fryer]." (Id. at 95.) Ciullo's failure to meet his sales goal resulted in him being "overdrawn" on his salary by $10,000, which he would need to pay back to the company. (Id. at 106; Ciullo Decl. ¶ 7.)

Ciullo testified that around the same time, he heard that Yellow Book management had also taken accounts away from another SR named Ned Carnes who was around 70 years old, and who subsequently quit. (Ciullo Dep. at 98.) Ciullo admitted that he did not hear this informationfrom Carnes directly, and that he had no direct knowledge of how other SRs' lists were affected. (Id. at 98-99.)

In the spring of 2003, Ciullo injured his knee and took eight weeks of paid disability leave following knee surgery. (Id. at 99.) Ciullo was scheduled to return to work in June 2003, two weeks prior to the halfway point of the Rockland canvass. He testified that when he returned to work, 60% of his prior Rockland accounts were missing from his list. (Id. at 101.) He complained to his immediate supervisor, Stacy Spears, and threatened legal action. (Id. at 102.) On June 16, 2003, Ciullo spoke with Fryer, who told him again that management could do what they pleased with the accounts, and that he had already assigned them to newer, more junior SRs because he needed to be able to guarantee them a certain amount of work. (Id. at 103, 113.) Fryer also indicated that he was worried the accounts would not get sold in time if they were not reassigned. (Id. at 112.) Ciullo again conceded that he had no knowledge of whether the account lists of other SRs were dealt with in a similar manner, but stated that he did not hear others complaining. (Id. at 105.) He also stated that Fryer and other managers never made any comments about Ciullo's age or knee injury in their conversations. (Id. at 112.)

Around the same time as his conversation with Fryer, Ciullo called Human Resources to complain about the situation. Within a week, he learned that the $10,000 indebtedness from the prior Manhattan canvass had been removed. His former accounts also began reappearing on his assignment list. (Id. at 105-06, 108.) Ciullo estimated that over the course of the next few canvasses, around 98% of his previous accounts were returned to him. (Id. at 117.) He stated that he "felt vindicated." (Ciullo Decl. ¶ 7.)

During the 2003 Rockland canvass, Ciullo finished at 77% of his sales goal. (Pl. Ex. X at D00130.) He testified that he felt his sales goal was not properly adjusted to reflect the fact thathe had entered the canvass late following his knee surgery, and that when new SRs joined the company mid-canvass, their sales goals were typically reduced based on their late arrival. (Id. at 125.) It does not appear that Ciullo asked management for an adjustment in his sales goal when he returned to work after his surgery, and he admitted that when he received a performance review in mid-2004 that documented his sales deficit during the 2003 Rockland canvass, he did not ask his supervisor for an explanation or raise any objections. (Id. at 119-24.)

It appears that following the 2003 Rockland...